January 18, 2013

New Jersey Town Proposes Flag Ban

The New Jersey town of West New York is contemplating a ban on the exhibition of flags, banners, and pennants. News story here. Someone needs to inform the town legislators of the existence of the First Amendment and its application to them. Flags are inherently a form of symbolic expression, and this is especially so with national flags. See Texas v. Johnson. A rainbow flag is a form of symbolic expression. So is a New York Giants flag or pennant. The proposed ban is content based, though not viewpoint based. As such, the town would have to surmount the burden of strict scrutiny, which it almost certinly could not do. It is hard to imagine a compelling reason for squelching such symbolic expression. Even if the ban is considered content neutral, it would still fail under the rationale of City of Ladue v. Gilleo. The ban would extirpate a venerable and unique form of expression. It's distressing to observe yet another band of constitutionally illiterate legislators.

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Your story doesn't surprise me that much. When I was in practice in Connecticut several decades ago, I addressed the Selectboard of the Town of Greenwich about a constitutional problem with the way they dealt with parking violations. The Town's system was, "If we gave you the ticket, you are guilty, so give us your money." In my presentation, I suggested that the Due Process Clause required more than that. The response I got from the First Selectman was, "The Constitution doesn't apply here." The quote is exactly what he said, by the way.

Maybe we shouldn't complain too much about this kind of thing with the current shortage of legal jobs. By the time the Federal Court convinced the Selectboard that the Constitution did apply -- even in Greenwich -- I had earned a significant legal fee which the Town had to pay.

I am not suggesting this ordinance is constitutional; it's not. But in looking at the text, I am not sure it's content-based. This is a heavy-handed, overbroad attempt to improve quality of life, city aesthetics, and property values by eliminating some of the more annoying and problematic signs, billboards, and posters. But rather than identifying particular problematic signs--which would have made the ordinance content-based--the council banned everything, hoping to argue it was content-neutral. Obviously it is going to fail under Gilleo, not only because of how it affects flags, but because of its stunning overbreadth. But that still is content neutral and subject to intermediate scrutiny. And it certainly does not seem like some nefarious effort by crazy anti-American liberal legislators to eliminate patriotism (as some of the commenters on the original story suggest).